People's Democracy

NCERT TEXT BOOKS

Rajeev Dhawan

Below we publish the expert opinion given by eminent Supreme Court advocate, Rajeev Dhawan, to Prasanth Venkatesh, advocate for the Safdar Hashmi Memorial Trust (SAHMAT) on the issue of the NCERT textbooks currently under review.

I have been asked my opinion on "whether, and how, the text books published by National Council of Educational Research and Training (NCERT) in recent years need to be re-considered in the light of the innumerable errors in the texts and their ideological stance which is alleged to be anti-secular, communal and misleading?"

The broad background to this is that following the BJP’s formation of the National Democratic Alliance (NDA) in 1999, it was under considerable pressure from some of its supporters from the Sangh Parivar to re-examine various school text books so that school education reflected the values of ‘Indianisation, Spiritualisation and Nationalisation’. It was suggested to me that the ambiguity in these terms had to be considered in the context of the public discourse of minister Murli Manohar Joshi and, perforce, of NCERT.

The discourse itself led to many decisions being taken by the ministry of human resource development (HRD) resulting in, it is alleged, the take over of various pivotal influential institutions controlled by the government or which the government could pressurise. We are not directly concerned with those developments except to consider whether the previous NDA government proceeded with an ideological bias of the kind that is contrary to constitutional principles and constitutes an excess of power. This is not to suggest that ideology cannot be the basis for public policy. But, if ideology eclipses other relevant considerations in ways that suggest an abdication of responsible discretion to ideological considerations, the consequent decision would suffer from arbitrariness and discrimination.

But, there were two other specific decisions of the HRD ministry and NCERT which are directly germane to our present concerns. The first was the National Curriculum for the 10 year school, which was supposedly approved on August 1, 2002 by the Central Advisory Board of Education (CABE). There is some controversy as to the manner and form of the CABE consultation. The decision of the Supreme Court in Aruna Roy Vs Union of India (2002) 7 SCC 368 took the view that the National Curriculum was not unconstitutional either because of any lack of consultation or because it reflected moral values which are relevant to India’s past and future. However, that judgement lays down important statements of law relevant to the issue of textbooks.

The second decision directly relevant to the query raised for this opinion is that NCERT devised new text books. It is suggested that the books that were especially targeted from the existing list were the works of ‘left’ wing historians including Professors Romila Thappar, R S Sharma, Bipan Chandra, Satish Chandra and Arjun Dev. The broad issue of ‘saffronisation of education’ was the subject of parliamentary debates in 2001-02. On September 2, 2001, 13 states were present at a meeting called by the chief minister of West Bengal who resolved to oppose this ‘saffronisation’. On May 26, 2002, members from 16 states walked out of the General Meeting of NCERT seeking a reconstitution of CABE for a better, more informed and non-arbitrary consultation.

The upshot of all this was that the old text books that had served education well for many years (except in the eyes of those who wanted to seek the new ‘saffron based’ changes) were replaced by new ones. In particular, pointed attention was drawn to the new textbooks by

• Makkan Lal et al., India and the World, for Class VI.

• Hari Om et al., Contemporary India, for Class IX.

• Makkan Lal, Ancient India, for Class XI.

• Meenakshi Jain, Medieval India, for Class XI.

• Satish Chandra Mittal, Modern India, for Class XII.

• Sima Yadav et al, India and the World, for Class VII.

• Pratyusa Kumar Mandal et al, Contemporary World History, for Class XII.

In respect of these books, there is a sizeable literature attacking the inaccuracy and bias in the books. In particular, the Indian History Congress has published a book brought together by Professors Irfan Habib, Suvira Jaiswal and Aditya Mukerjee entitled: History in the New NCERT Text Books: A Report and Index of Errors (Calcutta, 2003) concerning the following books:

• Makkan Lal et al., India and the World, for Class VI.

• Hari Om et al., Contemporary India, for Class IX.

• Makkan Lal, Ancient India, for Class XI.

• Meenakshi Jain, Medieval India, for Class XI.

An Index of Errors running over 124 pages (pp. 6-130) particularises a range of mistakes. SAHMAT’s Plagiarised and Communalised: More on the NCERT Text Books (2003) and its various other publications reveal problems with several other books.

Thus, there are several major aspects of the new books which have been brought into focus:

I Factual errors: There are a large number of factual errors which are too extensive and inaccurate to be permitted to continue in text books for children.

II Plagiarism: There are a number of passages in the new text books that have been lifted directly from works without acknowledgements and sometimes from the very same text books that are to be replaced.

III Saffron bias so that the state seems to support a biased ‘Hindu’ view.

IV Arbitrary procedures have been followed so as to exclude a proper and meaningful consultation necessary for an educational issue of such national importance.

I must make it clear that this opinion does not seek to go into whether the critics of these textbooks are necessarily accurate in their claims. I am proceeding on the assumption that they have made out a strong prima facie case which needs to be considered by the ministry as well as NCERT.

NCERT is a society registered under the Societies Registration Act 1960, created and controlled by the government. In 1991, NCERT took the general stance that it was not an institution of state and, therefore, was not subject to the fundamental rights dispensation of the constitution. This was accepted by the Supreme Court (see Chandra Mohan Khanna Vs NCERT, (1991) 4 SCC 578). Although nothing is said on this in the Aruna Roy decision (2003-supra) when dealing with the National Curriculum, a few months earlier in Pradeep Kumar Biswas case (2002) 5 SCC 111 at p. 133, 136 (cf. p. 159) it was categorically accepted that NCERT is an institution of State. This is significant in that no institution of State can violate the secular principles of the Constitution, seek to teach religion in State aided institutions or act in a manner that is capricious, arbitrary and irresponsible.

The ministry of HRD has a direct link and control over NCERT. The broad purposes for setting up NCERT are stated in clause 3.1 of the deed under which it is constituted, which reads as follows:

"3.1 The objects of the Council shall be to assist and advise the Ministry of Education and Social Welfare in the implementation of its policies and major programmes in the field of education, particularly school education.

(1) For the realisation of these objectives, the Council may undertake any or all of the following programmes and activities:

1. To undertake, aid, promote and coordinate research in all branches of education;

2. To organise pro-service and in-service training, mainly at an advanced level;

3. To organise extension services for such institutions as are engaged in educational research, training of teachers or provision of extension services to schools;

4. To develop and/or to disseminate improved educational techniques and practices in schools;

5. To cooperate with, collaborate and assist the State Education Departments, universities and other educational institutions for the furtherance of its objects;

6. To establish and conduct, in any part of the country, such institutions as may be necessary to realise its objectives;

7. To act as a clearing-house for ideas and information on all matters relating to school education;

8.  To advise the state governments and other educational organisations and institutions on matters relating to school education;

9. To undertake the preparation and or the publication of such books, materials, periodicals and other literature as may be necessary for the furtherance of its objects;

10. To acquire by gift, purchase, lease or otherwise any property, movable or immovable, which may be necessary or convenient for the purposes of the Council and to construct, alter and maintain any building or buildings for the purposes of the Council;

11.  To draw, make, accept, endorse, discount and negotiate government of India and other promissory notes, bills of exchange, cheques or other negotiable instruments;

12. To invest the funds of the Council in such securities or in such manner as may from time to time be determined by the Executive Committee and from time to time, to sell or transfer such investments;

13.  To sell, transfer, lease or otherwise dispose of all or any property of the Council; and

14. To do all such things as the Council may consider necessary, incidental or conductive to its primary objects of promoting educational research, advance professional training of educational personnel, and the provision of extension services to educational institutions."

As clarified in Clause 4 (a), the NCERT is generally supposed to act without reference to religious beliefs in respect of tests to be conducted for admitting or appointing members, students, teachers, workers or in any connection whatsoever.

More significantly, the Government of India has special powers to inquire into the affairs of the NCERT and give directions. This is contained in Clause 6 which reads as follows:

In addition, the Government of India may at any time issue directives to the Council on important matters of policy and programmes."

It follows that although the NCERT is an autonomous body, the government has a corrective oversight power which is in my view a power coupled with a duty. The classic formulation of this is given in the Commissioner of Police v. Gordhandas, AIR 1952 SC 16 at 22 which quoting from an English decision [Julius Vs Lord Bishop of Oxford, (1880) 5 AC 214 (HL)] stated:

In the matter of textbooks where issues of education and also secularism are at stake, the exercise of a power coupled with a duty is even more obvious.

It is now settled law that the state can enter into the textbook market (see Ram Jawaya Kapur AIR 1955 SC 549 and Naraindass (1974) 4 SCC 788). This does not mean that the various examining bodies or schools have to buy these books (see Naraindass (1974 – supra at pr. 11). Even so, the influence of these textbooks is quite comprehensive and they cannot be ignored by any student, school or examining body. Thus, the ‘direct and inevitable effect’ of the textbooks published by NCERT is that they affect the fundamental rights of those in education and of the student community.

Since these textbooks are devised by the state, the latter must act in a manner consistent with the secular goals of the constitution and in a manner that is without arbitrariness and discrimination.

It is now well established that secularism is part of the ‘basic structure’ of the constitution (see Ziyauddin Vs Brijmohan, (1976) 2 SCC 17, pr. 44; S R Bommai Vs Union of India, (1994) 3 SCC 1, prs. 146-53 (per Sawant and Kuldip Singh JJ), prs. 186 and 252 (per Ramaswamy J), prs. 302, 310 (per Jeevan Reddy J); Ismail Faruqui Vs Union of India, (1994) 6 SCC 360, pr.134; A S Narayana Deekshitilu Vs State of AP, (1996) 9 SCC 548, pr. 75; Aruna Roy Vs Union of India, (2002) 7 SCC 368, prs. 56 and 86). In Aruna Roy’s case (2003-supra) dealing with the National Curriculum the Supreme Court laid down that the state can teach moral values drawn from India’s past to students, but accepted a broad distinction arising from article 28 of the constitution between:

Thus, learning or teaching Indian history, science or sociology is desirable but not a version of it which espouses looking at such things through the lens of one particular religion or faith or some of its adherents. This would be violative of both secularism and article 28 in so far as it relates to the huge network of government-run or aided schools. It applies equally to NCERT which is government funded and engaged in education. In Aruna Roy’s case (2003-supra) Justice Dharmadhikari stated at pr. 57, p. 399:

A distinction, thus, has been made between imparting "religious instruction" that is teaching of rituals, observances, customs and traditions and other non-essential observances or modes of worship in religions and teaching of philosophies of religions with more emphasis on study of essential moral and spiritual thoughts contained in various religions. There is a very thin dividing line between imparting of "religious instruction" and "study of religions". Special care has to be taken of avoiding possibility of imparting "religious instruction" in the name of "religious education" or "study of religions".

Thus, there is a difference between state institutions imparting education about religion and teaching or propagating a religious point of view.

On how this exercise of teaching values but not propagating religion is to be done, has also been elaborated by Justice Dharmadhikari in Aruna Roy’s Case (2003-supra) at pr.79, p. 404:

Thus, it is the responsibility of any government which publishes textbooks to ensure that proper text books are created by an appropriate process.

In Aruna Roy’s case (2003-supra), it was disputed whether CABE was consulted. Since one judge took the view that it had, the issue of CABE’s consultation was not treated as fatal in respect of the legality of the National Curriculum. It is relevant to mention that various states submitted suggestions to the Sarkaria commission on centre-state relations (1988) underlining the importance of CABE. In Aruna Roy’s case (2003-supra), the court through Justice Dharmadhikari took the view (at prs. 96-98, pp.411-2):

98. For the reasons given above, we do not find that the National Education Policy, 2002 runs counter to the concept of secularism." (Emphasis added). (On the importance of CABE, see also Justice Sema at pr.102.)

It follows that if the correct due process is to be followed in a federation, CABE (which has been functioning since 1935) or some such institution should be part of the process of consultation.

(c) Political ideology and the constitutional dispensation

It is inevitable that political objectives are important to every government and necessarily inform their programmes and policies. This is unexceptional. Courts will not normally examine policy issues. But, where several relevant considerations have to be taken into account and irrelevant considerations cannot be taken into account, an overt reliance on ideology to the exclusion of other relevant considerations is not permissible. In another context in the Delhi Science Forum case (1996) 2 SCC 495, it was held:

"It cannot be disputed that in respect of grant of any right or licence by the central government or an authority which can be held to be state within the meaning of article 12 of the constitution not only the source of the power has to be traced, but it has also to be found that the procedure adopted for such grant was reasonable, rational and in conformity with the conditions which had been announced. Statutory authorities have sometimes used their discretionary power to confer social or economic benefits on a particular section or group of community. The plea raised is that the Act vests power in them to be exercised as they "think fit". This is a misconception. Such provisions while vesting powers in authorities including the central government also enjoin a fiduciary duty to act with due restraint, to avoid "misplaced philanthropy or ideology". Reference in this connection can be made to the cases: Roberts Vs Hopwood, [1925] All ER Rep 24; Prescott Vs Birmingham Corpn., [1954] 3 All ER 698; Taylor Vs Munrow, [1960] 1 All ER 655; Bromley London Borough Council Vs Greater London Council, [1982] 1 All ER 129."

Thus, where the sole objectives underlying the textbooks was to advance a particular ideology without paying attention to other relevant considerations, such an approach to decision making is intrinsically bad in law.

It has been stated that there are two distinct issues in relation to the NCERT that require attention.

First, it has been suggested that NCERT was itself being run in a partisan manner contrary to its autonomy and to reasonable principles of institutional functioning. There is some evidence in the material supplied to me that suggests that this is so. It is the duty of the government to seriously examine the issue and, if it is satisfied that a prima facie case is made out and an inquiry into NCERT is required, it must issue notices under the first part of clause 6 of the NCERT deed (which has already been reproduced above).

The second issue is more immediate. The Indian History Congress’ publications suggests that there are far too many errors for the new text books to be accepted as the basis of education. The question is whether a case is made out for with drawing the existing textbooks. For this the relevant considerations are as follows:

(i) The number of errors in the textbooks are extensive.

(ii) They cannot be corrected by a corrigenda pasted over in new editions of the textbooks.

(iii) There are serious charges of plagiarism. There are no acknowledgements.

(iv) Some of the plagiarism is from the text books these new text books seek to replace.

(v) On the issue of plagiarism and copyright, there is a possibility of a legal case seeking to injunct these books from circulation.

(vi) There is a communal element in these books that has disturbed many institutions.

(vii) The removal of these books will not create a void since the previous text books are still available and were used without demur for many years as books that have been tried and tested.

(viii) On the grounds of inaccuracies and copyright violations alone, a prime facie case is made out for immediate remedial action.

It goes without saying that the new government should not be seen as indulging in a ‘tit-for-tat’ policy. The enterprise of education is much too important to India for it to become the victim of party politics. Yet, all this does not prevent the government from using its powers under clause 6 of the deed of NCERT to give appropriate directions to withdraw the books on the basis of incontrovertible evidence of error, mistakes, copyright violations and anti-secular bias.

The government has appointed a committee to examine the textbooks. The committee needs to report in the light of the above. The government must take into account the report but it cannot abandon its discretion to the committee and must make its decision on relevant considerations.

In the light of the above, it is summarily stated that

(i) There is little dispute that the former union government and NCERT created new textbooks as part of a new policy.

(ii) These textbooks were issued by NCERT which is now considered to be ‘state’ within the meaning of the discipline of the fundamental rights chapter of the constitution.

(iii) The union government has power under clause 6 of NCERT’s deed to order an inquiry into NCERT’s affairs and give suitable directions to it.

(iv) It is well settled that State institutions can enter into the textbook market but they are bound by the discipline of the constitution.

(v) The state cannot act arbitrarily and must respect the secularism of the constitution which permits moral values and courses on religion to be taught. But under this guise of teaching moral values, religious education cannot be imparted by the state.

(vi) In our federal system, the central government should properly consult the state government through CABE or some such body on education matters. That is an appropriate procedure.

(vii) However, where relevant considerations require immediate action (inter alia, through clause 6 of the NCERT’s deed), such action should be taken if necessary.

(viii) Where the union or the state acts as a publisher, it is under a duty to not publish and must withdraw from the market such publications which are wrong and inaccurate and which errors cannot be cured by a mere corrigenda. This applies equally where there are copyright violations and plagiarism.

(ix) Where the state or union government or State agency have acted to advance a particular religious view in a biased manner, the union is under a duty to examine the actions so taken and place them under scrutiny.

(x) If textbooks on which education depends are to be withdrawn, there cannot be a vacuum. An alternative must exist and be provided. The former textbooks can be restored.

On the facts of this case, it appears that a strong prima facie case is made out to

(a) Examine the affairs of NCERT.

(b) Appoint a committee to report back immediately on whether it is in the interest of education that inaccurate plagiarised works be withdrawn. Where a strong case is made out in this regard, this is sufficient to withdraw the books to be replaced by an existing viable alternative which has hitherto been used.

(c) The issue of ‘saffronised’ textbooks needs to be examined by experts.

(d) The government is expected to pay due attention to the view of experts but cannot abandon its responsibility and empowerment to them. Any decision by the government must be based on relevant considerations.

(e) In a federal setup, a meaningful consultative process with CABE should be established for future decisions.

The issues raised are important. It is not for a newly elected government to simply reverse the decision of a former government without taking into account relevant considerations. But, where immediate action is necessary to remedy the government’s mistakes as a publisher and educator, such immediate steps should be taken.